U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Palls Church. Virginia 20530

Name: MORRIS, WAYNE LINTON

OHS/ICE Office of Chief Counsel - SOC

146 CCA Road, P.0.Box 248

Lumpkin, GA 31815

A 074-303-761
Date of this notice: 7/23/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DOn.ltL

tViA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Mullane, Hugh G.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Wayne Linton Morris, A074 303 761 (BIA July 23, 2015)

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Rojas, Rebecca
Rojas and Rawcliffe LLC
1755 The Exchange SE
Suite 140
Atlanta, GA 30339

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Chw-ch, Virginia 20530

File: A074 303 761 -Lumpkin, GA

Date:

JUL J 32015

In re: WAYNE LINTON MORRIS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Rebecca Rojas, Esquire
ON BEHALF OF DHS:

Tracy Short
Deputy ChiefCounsel

CHARGE:
Notice: Sec.

237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] Convicted ofcontrolled substance violation

APPLICATION: Termination

The respondent, a native and citizen of Jamaica and lawful permanent resident of the
United States, appeals from the Immigration Judge's decision dated August 28, 2014, finding
him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(B)(i), based on a conviction for possession with intent to use drug paraphernalia
under section 90-113.22 of the North Carolina General Statutes (2008), and ordering him
removed from the United States. 1 Oral argument was presented in this case on March 26, 2015,
regarding the issue ofres judicata. 2
1

The respondent was also convicted for possession of up to one-half ounce of marijuana under
section 90-95(d)(4) ofthe North Carolina Revised Statutes (1996), which would not qualify as a
controlled substance violation, standing alone (I.J. at 3, 5; Exh. 3). See section 237(a)(2)(B)(i) of
the Act ("other than a single offense involving possession for one's own use of thirty grams or
less ofmarijuana").
2

On appeal, the respondent initially contended that the Immigration Judge incorrectly concluded
that the Department of Homeland Security ("DHS") is not precluded by res judicata (also known
as claim preclusion) from pursuing his removal as charged in these proceedings because the DHS
could have so charged him in prior proceedings. The prior proceedings, based on a charge under
section 237(a)(2)(A)(ii) of the Act, 8 U.S.C. 1227(a)(2)(A)(ii) (convicted of two or more
crimes involving moral turpitude), were terminated by the Immigration Judge on February 4,
2014, and the DHS's appeal was dismissed by this Board on June 17, 2014 (I.J. at 2; Exh. 5,
tab C). As a prudential matter, we decline to reach the issue ofresjudicata.
Cite as: Wayne Linton Morris, A074 303 761 (BIA July 23, 2015)

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IN REMOVAL PROCEEDINGS

-A074 303 761

After we heard oral argument in this case, the United States Supreme Court issued its
decision in Mellou/i v. Lynch, 135 S.Ct. 1980 (June 1, 2015), holding that a drug paraphernalia
conviction must relate to a controlled substance as defined in section 102 of the Controlled
Substances Act ("CSA"), 21 U.S.C. 802, to qualify as a controlled substance violation under
section 237(a)(2)(B)(i) of the Act.

Based on the agreement of the respondent and the OHS that termination is appropriate under
the circumstances of this case, we will grant the respondent's motion to terminate these
proceedings. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) ("We believe
the parties have an important role to play in these administrative proceedings, and that their
agreement on an issue or proper course of action should, in most instances, be determinative.").
Accordingly, the following orders will be entered.
ORDER: The Immigration Judge's decision dated August 28, 2014, is vacated.
FURTHER ORDER: These removal proceedings are terminated.

The OHS requests that termination be without prejudice, but it has not identified a specific
justification under the regulations to support that request. See 8 C.F.R. 239.2(a), 1239.2(c).

Cite as: Wayne Linton Morris, A074 303 761 (BIA July 23, 2015)

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The respondent moves for termination based on Mellou/i, supra, arguing that a controlled
substance is not identified in the record of conviction. The DHS initially opposed termination
and requested remand to provide it an opportunity to demonstrate either that the North Carolina
drug schedules include only federally-controlled substances as defined in the CSA, or that the
conviction record identifies a federally-controlled substance. However, the DHS has withdrawn
its opposition to the respondent's motion to terminate. 3

August 28, 2014

File: A07 4-303-761

In the Matter of

)
)
)
)

WAYNE LINTON MORRIS

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:
I APPLICATIONS: None. Respondent's counsel wishes to accept the Oerder of
Rfemoval
to Jamaica and reserve her client's right to appeal. (The Court
designated Jamaica as the country of removal following respondent's
counsel's declining to designate a country of removal. Respondent's
counsel has advised the Court that her client does not have a fear of
being tortured or persecuted in Jamaica, and that he is seeking no
relief before the Court.)
ON BEHALF OF RESPONDENT: REBECCA ROJAS
Kuck Immigration Partners, LLC.
365 Northridge Road, Suite 300
Atlanta, GA 30350

ON BEHALF OF OHS: ANTHONY M. CACAVI0 1 Assistant Chief Counsel

146 CCARoad
Lumpkin, GA 31815
ORAL DECISION OF THE IMMIGRATION JUDGE

Today is August 28, 2014, and the question before the Court today is whether
1

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA

the Department of Homeland Security's, which the Court will refer to as the Department
or OHS, new charge of removability under INA Section 237(a)(2)(B){i) is barred by res

This Court finds that the new charge of removability is not barred and,
accordingly, this Court finds that the respondent is removable as charged by clear and
convincing evidence. The Court sustains Allegations 3, 4 and 5,and the charge under
237(a)(2){B)(i). This Court finds that the respondent has not shown that the new charge
of removability stems from the same nucleus of operative facts prior, but the
Department's new charge of removability is not barred by res judicata.
EXHIBITS
Exhibit 1, Notice to Appear.
Exhibit 2, respondent's criminal records,including warrant for arrest and
judgment.
Exhibit 3, printout from the Clerk of the Superior Court, Orange County.
Exhibit 4, Department of Homeland Security's memorandum of law in opposition
to respondent's motion to terminate.
Exhibit 5, respondent's motion to terminate proceedings with memorandum in
support.
- Tab A Notice to Appear.
- Tab B, Form 1-213,Record of Deportable/lnadmissible Alien.
- Tab c. Board's decision dated June 17, 2014.
- Tab D, Notice to Appear of June 27, 2014.
- Tab E, bond order of this Court dated May 13, 2014.
PROCEDURAL HISTORY
On June 27, 2014, the Department of Homeland Security initiated removal
A074-303-761

August 28,2014

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judicata following termination of the prior removal proceedings.

proceedings against respondent through its issuance of a Notice to Appear. See Exhibit

national of the United States; (2) respondent is a native and citizen of Jamaica; (3)
respondent's status was adjusted to that of lawful permanent resident on or about
September 18, 1997, under Section 245 of the Immigration and Nationality Act; (4) on
August 20, 1996, respondent was convicted of possession of marijuana up to half
ounce, in violation of Section 90-95(0) ( 4) of the North Carolina General Statutes
Annotated, in Orange County, North Carolina; (5) on September 24, 2008, respondent
was convicted of possession of drug paraphernalia in violation of North Carolina
General Statute Section 90-113.22, in Durham County, North Carolina. See Exhibit 1.
The Department charged respondent with removability under INA Section
237(a)(2)(B){i) in that at any time after admission, respondent was convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the
United States, or a foreign country relating to a controlled substance (as defined in
Section 102 of the Controlled Substances Act,21 U.S.C. 802), other than a single
offense involving possession for one's own used of 30 grams or less of marijuana.
Respondent allegesatfefls that the charge of removability and, in turn. the instant
removal proceedings, are barred by the doctrine of res judicata. See motion to
terminate proceedings with memorandum of support, Exhibit 5. According to
respondent, the prior proceedings were terminated and the instant charge of
removability was not brought in those proceedings. Thus, under the doctrine of res
judicata, the Department cannot now institute proceedings with a charge that could
have been brought in the prior proceedings.
For the reasons to follow, the charge of removability under INA Section
237(a}(2)(B)(i) is not barred by res judicata.

A074-303-761

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August28,2014

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1. The Department alleged the following: (1) the respondent is not a citizen or a

STATEMENT OF LAW

were raised or could have been raised in an earlier proceeding. See Maldonado v. U.S.
Attorney General, 664 F.3d 1369, 1375 (11th Cir. 2011) (citing Ragsdale v.
Rubbermaid, Inc. , 193 F.3d 1235, 1238 (11th Cir. 1999)). However, according to the
Eleventh Circuit, res judicata applies more flexibly in the administrative context than it
does when a second court of competent jurisdiction is reviewing the decision of a first
court. See Maldonado v. U.S. Attorney General, 664 F.3d at 1377-78 (citing AM.
Heritage Life Ins. Co. v. Heritage Life Insurance Company, 494 F.2d 3, 10 (5th Cir.
1974).
The party asserting res judicata bears the burden of proving the following
elements: (1) the prior decision was rendered by a court of competent jurisdiction; (2)
there was a final judgment on the merits; (3) both cases involved the same parties; and
(4) both cases involved the same causes of action. See Dormescar v. U.S. Attorney
General, 690 F.3d 1258,1268 (11th Cir. 2012) (citing In re Piper Aircraft Corp., 244
F.3d 1289, 1296 (11th Cir. 2001)).
APPLICATION TO FACTS
As conceded by the Department, respondent has shown the first three elements.
See Exhibit 4. However, respondent's res judicata claim fails at the fourth element.
See Dormescar v. U.S. Attorney General,690 F.3d at 1268. More specifically,
respondent cannot show that both cases involve the same causes of action.
According to the Eleventh Circuit, two cases are generally considered to involve
the same cause of action if the latter case "arises out of the same nucleus of operative
fact, or is based upon the same factual predicate," as the former one. See Maldonado
A074-303-761

August 28, 2014

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Generally speaking, the doctrine of res judicata bars the filing of claim which

v. U.S. Attorney General, 664 F.3d at 1375-76 (citing Ragsdale v. Rubbermaid, Inc.,

Here, the Court finds that the instant NT A and charges of removability do not
arise out of the same nucleus of operative fact, or stem from the same factual predicate
as the prior. The prior NTA involved a charge of removability under INA Section
237(a)(2)(A)(ii), which stemmed from a 2006 conviction for communicating threats, and
a 2005 conviction for assault with a deadly weapon. See motion to terminate, Exhibit 5,
Tab A. On the contrary, the instant proceedings involve a charge of removability under
INA Section 237(a)(2)(B)(i), which stems from two unrelated controlled substance
violations - a 1996 conviction for possession of marijuana up to half ounce, and a 2008
conviction for possession of drug paraphernalia. See Exhibit 11.
Indubitably, those convictions involved substantially different facts and evidence
and require wholly separate proof for conviction. As such, it cannot be said that they
arise out of the same nucleus of operative fact, or are based upon the same factual
predicate, as the former one. See Maldonado v. U.S. Attorney General, 664 F.3d at
1375-76 (citing Ragsdale v. Rubbermaid, Inc., 193 F.3d at 1239). In addition, the Court
notes that the applicable Federal regulations do not mandate that the Department bring
all potential charges in one removal proceeding. See 8 C.F.R. Sections 1003.30,
1240.1O(e).
CONCLUSION
As such, it appears that the Department acted within its authority in issuing
another Notice to Appear, and the new charge of removability and corresponding
removal proceedings are not barred by the doctrine of res judicata. Accordingly, the
Court sustains the allegations, sustains the charge, and finds the respondent removable
as charged by clear and convincing evidence.
A074-303-761

August 28, 2014

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193 F.3d at 1239).

For the foregoing reasons, the Court enters the following order:

The respondent is hereby ordered removed from the United States to Jamaica.
As to the issue of voluntary departure under safeguards, respondent's counsel
has represented to this Court that .her-G1eHt is not pursuing voluntary departure under
safeguards on behalf of her client. Therefore, the Court will not address that issue.
Again, based on the foregoing, it is hereby ordered that the respondent be
removed from the United States to Jamaica based on the charge contained in the
Notice to Appear.

signature

Please see the next page for electronic

BARRY S. CHAIT
Immigration Judge
Thursday, August 28, 2014

Respondent's counsel has advised this Court today during this hearing that she is
reserving her client's right to appeal and any appeal that either party chooses to file will
be due not later than September 29, 2014.

A074-303-761

August 28, 2014

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ORDER:

..
//s//
Immigration Judge BARRY S. CHAIT

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chaitb on December 1, 2014 at 2:12 PM GMT

A074-303-761

August28,2014